Posted on November 23 2018
If you receive a criminal conviction you may be liable for deportation.
Generally, both temporary and residence visa holders are liable for deportation for certain criminal convictions. This will depend on the nature of the conviction. If you are a resident, it will also depend on the date of the offending.
Recently one of our clients, who is a New Zealand resident, received a conviction for common assault. Shortly after the conviction, Immigration took steps to serve him with a deportation liability notice.
In this case, Immigration relied upon s 161 of the Immigration Act 2009 as justifiable reasons for serving a deportation liability notice. His offending occurred within two years of the granting of his residence visa and the offence (according to Immigration) fell within the parameters of the relevant section of the Act.
Upon review of the case, a decision was made to challenge the original conviction by way of an appeal to the High Court. As the conviction was more than two years old, our client was first required to obtain leave of the Court to file his application out of time. Secondly, he required permission from the Court to introduce new information for consideration. Thirdly, he was required to provide reasons to support his appeal. Fourthly, he sought to quash the conviction based on the consequences the conviction had on his immigration status.
Our client was required to identify some aspect of the earlier advice he received or sentencing process which could be categorised as a “miscarriage of justice”.
Each case will be fact specific. Generally, the Court’s enquiry will focus on the advice and steps taken by the earlier lawyer who was involved in the sentencing.
In our client’s case, the Court found in his favour in all respects. His appeal was granted, and his conviction was quashed. Effectively, this meant that as there was no conviction, Immigration could no longer support the deportation liability notice under s 161 of the Act.
If you find yourself in a situation; whereby, Immigration has served or is attempting to serve you with a deportation liability notice or is taking enforcement steps to remove you from the country due to a criminal conviction it is recommended that you seek urgent legal advice, as you may have options to resolve the problem.
Simon Graham, Partner
Christine Le Beau, Associate
Adam Curtin, Solicitor